Summary: Ms X complained the Council decided to approve a planning application behind her property without fully considering the impact of traffic, flooding and building on green belt land. Ms X also complained the Council failed to consult residents in a fair and impartial manner. The Ombudsman does not find fault with the Council’s decision-making or consultation over the planning application. The Ombudsman does find fault with the Council for the delay in handling Ms X’s complaint but does not consider this caused Ms X a significant personal injustice.

The complaint

1. Ms X complained the Council decided to approve a planning application behind her property.
2. Ms X says the Council has not fully considered the impact on traffic, the impact of flooding and on impact of building on a green belt area.
3. Ms X also complained the Council failed to consult residents in a fair and impartial manner.

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What I have investigated

4. I have investigated Ms X’s complaints about the Council’s decision making and consultation about the planning application.
5. I have not investigated Ms X’s concerns the developer has begun construction of the development before satisfaction of the planning conditions. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

9. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Ms X provided comments on my draft decision. I considered her comments before making my final decision.

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What I found

The Law

11. When a council makes a decision on a planning application it can only take certain issues into account. These are often referred to as “material planning considerations.” Examples of material planning considerations include:
1. Local and national planning policies.
2. Development on Green Belt land.
3. Highway issues.
12. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.

The Planning Inspectorate

13. The Planning Inspectorate is an executive agency with delegated powers on behalf of the Secretary of State for Housing, Communities and Local Government.
14. The Planning Inspectorate deals with planning appeals, national infrastructure planning applications, examinations of local plans and other planning-related and specialist casework in England.
15. The Planning Inspectorate can decide to overrule a Council’s decision on appeal. A Planning Inspectorate’s decision can only be appealed on a point of law to the High Court.

Council planning policies

16. The Council outlines its planning policies in its Unitary Development Plan and the Local Development Framework Core Strategy Development Plan.
17. Section SD6 of the Unitary Development Plan relates to impacts of climate change. SD6 says the Council will require developments to incorporate sustainable drainage systems to manage the run-off of water from the site. The Council will require any development on greenfield sites to ensure the rate of water run-off does not increase because of the development.
18. The Council’s policy on flood risk assessment outlines that it has four groups of flood zones within its area; flood zones 1, 2, 3a and 3b. These flood zones are defined by there vulnerability to flooding. Flood zone 1 has a low risk of flooding and the Council will consider development suitable in flood zone 1 without the need for a flood risk assessment. The Council uses data compiled by the Environment Agency to decide its flood zones.

Council complaints process

19. The Council has a two-stage complaints process.
20. The Council will assign a manager to investigate a Stage 1 complaint and will aim to respond to a person within 20 working days. The Council says it will keep a person updated if it cannot respond within 20 working days.
21. The Council says that if a person is not happy with the Stage 1 complaint response they can progress to Stage 2. The Council will aim to respond to a Stage 2 complaint request within 20 working days. The Council says it will keep a person updated if it needs longer than 20 working days.

What happened

22. On 23 January 2017, a developer submitted a planning application to build two properties on the land behind Ms X’s house.
23. The Council produced a planning report on 2 May 2017 which recommended refusal of the planning application. The Council recommended refusal of the application because:
• It was on a road which was single width and had restricted visibility. The Council said an increase in use would put pedestrians at risk to a level it considered unacceptable.
• The development does not fall within any of the exemption criteria for constructing new buildings in Green Belt land. The development was inappropriate as this would be harmful to the Green Belt.
24. The Council refused the planning application on 2 May 2017.
25. The developer appealed the Council’s refusal of the planning application on 17 October 2017.
26. On 2 January 2018, the Planning Inspectorate finished its appeal decision and granted planning permission. The Planning Inspectorate overruled the Council’s decision because:
• The road the development was proposed to sit on is relatively straight and allows for clear views in both directions. The Planning Inspectorate had no specific evidence of collision data to indicate a history of highway incidents on the lane. Vehicular travel of two extra houses would not amount to a significant intensification of travel. The proposal was unlikely to result in significant harm to highway safety.
• The development was situated in a village for the purpose of national Green Belt policy. The application site fit the criteria as an “in-fill” site giving it an exception to the normal limits on building on Green Belt land.
27. The developer did not start works on the approved planning application but, instead changed plans for the site. On 15 October 2020, the developer submitted a new planning application for two properties on the site behind Ms X’s house.
28. The Council sent a consultation letter to Ms X on 17 November 2020 inviting her comments on the planning application. Ms X provided her objections to the planning application.
29. The Council’s highway authority provided comments on 23 November 2020. The highway authority said the site already had planning permission for building two houses following appeal to the Planning Inspectorate. The highway authority said that since the application was effectively for the same development it had no reason or justification to raise concerns.
30. The Council held a Committee Meeting on 4 February 2021. Because of the concerns raised by the Council and residents, the Committee Meeting deferred a decision to allow the developer to submit amended site plans. The developer submitted the amended site plans on 10 February 2021.
31. The Council wrote to Ms X on 11 February 2021 to tell her about the amended site plans and invited her to comment.
32. The Council wrote to Ms X on 2 March 2021 to tell her that it would hold the new Committee Meeting on 11 March 2021. The Council invited Ms X to attend the meeting and provide comment.
33. Ms X contacted the Council on 7 March 2021 to discuss how to present her concerns at the meeting. The Council discussed the planning application and Committee Meeting process with Ms X by both email and telephone from 7 March 2021 to 9 March 2021.
34. The Council held the Committee Meeting on 11 March 2021. At the Committee Meeting, Ms X raised her objections to the planning application. Ms X raised concerns about traffic, flooding, privacy and lack of consultation. The Council discussed inclusion of conditions about landscaping for privacy and decided to refer the application to the Planning and Highways Committee without a recommendation. The Planning and Highways Committee agreed to the planning application subject to conditions on 25 March 2021.
35. Ms X complained to the Council on 30 March 2021. Ms X said:
• The developer made untrue comments about the residents objecting to the planning application.
• The Council had not responded to her concerns about traffic danger the application presented.
• The Council did not send consultation letters to all her neighbours.
• The Council had granted planning permission subject to the developer building a playground elsewhere in the Council area. Ms X asked if it was normal practice of the Council to trade off Green Belt land in this manner.
• The Council had not fully considered her concerns about flooding.
36. On 21 April 2021, the Council produced its Committee Report on the planning application. The Council acknowledged comments made by residents in response to the planning application including concerns about flooding, traffic and building on Green Belt land. The Committee Report said:
• The development was not located on an area liable to flooding and was within Flood Zone 1. As such, the developer did not need to submit a Flood Risk Assessment. The Council recognised residents’ concerns about flooding and recommended a planning condition for a drainage scheme.
• The highways authority pointed to the previous planning application granted and the new application does not present a material change. The Planning Inspectorate concluded the development will not be harmful to highway safety and a refusal on this ground could not be sustained.
• This application fell under the exception criteria for building on Green Belt land because it was an “in-fill” site in a village. The Council referenced the previous decision by the Planning Inspectorate.
• It would seek a contribution to a children’s play area elsewhere in the Council area to offset the development.
• It recommended granting the planning application subject to conditions.
37. On 26 May 2021, Ms X chased the Council for a response to her complaint on 30 March 2021.
38. The Council granted planning approval on 8 June 2021 subject to conditions. The conditions included the requirement for the developer to submit a scheme of landscaping and boundary screening and provision of a detailed surface water drainage scheme before commencement of any development.
39. The Council provided a Stage 1 complaint response to Ms X on 8 June 2021. The Council said:
• It refused the original planning application because of highway safety concerns but the Planning Inspectorate overruled it and granted planning permission.
• The Council’s policies allow for development in Green Belt land when it is an “in-fill” development in a village. The Council said the Planning Inspectorate made this decision in the original planning application appeal.
• It has a policy where all developments are required to contribute towards open space across the borough.
• It carried out neighbour notification in accordance with the Council’s statement of Community Involvement by notifying adjacent neighbours and advertising on the site and through a press notice.
• The application site is not an in area liable to flooding and is within Flood Zone 1. The Council said it did not consider the development needed a flood risk assessment because of this. The Council also said it put in place a condition for sustainable drainage.
40. Ms X requested the Council considered her complaint at Stage 2 of its complaints process on 5 July 2021. Ms X reiterated her concerns about traffic, development on Green Belt land, flooding and inadequate consultation.
41. The Council provided its Stage 2 complaint response to Ms X on 2 August 2021. The Council said:
• It had reviewed the report and found the extra two houses would not result in a significant intensification of traffic.
• The report gave a comprehensive overview of the green belt consideration and the development complied with the Council’s policies and the National Planning Policy Framework.
• It took proper consultation towards the planning application.
• The report considered residents’ comments about flooding. The Council included a condition requiring the developer to submit a drainage scheme before commencement of building works.
• Ms X could approach the Local Government and Social Care Ombudsman with her complaint.

Analysis

42. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define planning law.
43. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision to approve the planning application. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.

Highway concerns and Green Belt development

44. Ms X complained the Council failed to properly consider her concerns about the impact of traffic and development on Green Belt land.
45. The Council decided to reject the developer’s first planning application based on concerns over the development being on Green Belt land and the potential impact of increased traffic. The Council’s decision in 2017 agreed with Ms X’s concerns and I find no injustice to Ms X with this decision.
46. The developer appealed this decision to the Planning Inspectorate who overruled the Council in 2018, granting planning permission. The Council cannot overrule the decision of the Planning Inspectorate.
47. When the developer brought the second planning application to the Council in 2020, the Council decided the application was not materially different to the first planning application. The Council decided this because both applications were for development of two houses.
48. Since the second planning application was not materially different, the Council considered the findings of the Planning Inspectorate’s decision on the first planning application. The Council used the Planning Inspectorate’s decision to justify acceptance of the planning application on the traffic and Green Belt concerns.
49. The Council has acted without fault in considering the decision of the Planning Inspectorate and using these findings to guide its decision on the second planning application. The Council cannot overrule the Planning Inspectorate so it would have been fault if the Council failed to follow the previous decision outlined by the Planning Inspectorate.
50. While Ms X may not agree with the Council’s findings about traffic or Green Belt development, this is a decision set by the Planning Inspectorate and one the Council must follow. Since the Planning Inspectorate has the delegated authority of the secretary of state, their decisions are outside the remit of the Local Government and Social Care Ombudsman’s investigation.

Consultation

51. Ms X complained the Council failed to consult with residents in a fair and impartial manner in the latest planning application.
52. The Council sent Ms X an initial consultation letter following receipt of the planning application and sent an updated consultation letter following changes to the planning application in February 2021. The Council also sent Ms X letters inviting her to the consultation meeting which outlined how Ms X could put forwards comments at the consultation meeting.
53. The Council has written to Ms X with suitable information about a development which could impact her as a neighbouring property. The Council gave information to Ms X in these letters about the development and how she could provide comments on the development. I do not find fault with how the Council kept Ms X informed about the development.
54. Ms X has complained that not all her neighbours received consultation letters. Ms X does not have consent from neighbours to complain on their behalf. Since Ms X received consultation letters, the Ombudsman cannot investigate this part of Ms X’s concerns.
55. The Council invited Ms X to speak at the Committee Meeting. Ms X said she did not receive enough information over the telephone about how to speak at the meeting. While I acknowledge Ms X may not have received as much information as she wanted, Ms X was able to speak at the Committee Meeting and present her concerns about the development. Ms X did not miss an opportunity to present her concerns. Even if the Ombudsman could find fault with the information the Council provided, there is no personal injustice to Ms X.
56. Ms X has also questioned the impartiality of the Council. Ms X pointed to the Council telling her in the Committee Meeting the development had already been approved and works could start tomorrow if the developer wanted.
57. The Committee Meeting recording shows a councillor telling Ms X the planning application was for the full development and not just the extension. The councillor explained that it was considering the new planning application in its entirety and not just the extension which most of Ms X’s comments related to. The councillor told Ms X the Planning Inspectorate had approved the previous planning application in January 2018 and this could go ahead tomorrow if the developer wished.
58. The information the councillor gave the Committee Meeting was factual. I do not consider this shows bias from the councillor but, rather, an attempt to provide information to Ms X. This same councillor had also raised various questions about the viability of the planning application during the committee Meeting.
59. Ms X also complained the developer made negative comments about the residents. The comments and opinion of the developer do not reflect that of the Council. The Council did not make any negative comments about the residents during the Committee Meeting.
60. The Council has acted impartially in its consultation with Ms X about the development. I do not find fault with the Council.

Flood risk

61. Ms X complained the Council failed to properly consider the impact of flooding on her property when approving the development.
62. The Council’s policy for flood risk assessment says it uses data compiled by the Environment Agency to decide what flood zone a development site is located in. The Council’s Committee report outlined the development site was within flood zone 1. The Council also confirmed this within its complaint responses to Ms X on 8 June 2021 and 2 August 2021.
63. I have checked the Environment Agency’s “Flood Map for planning” and this confirms the Council’s statement the development is in flood zone 1.
64. The Council’s policy on flood risk assessment says that flood zone 1 is the lowest risk group of flooding. The Council’s policy says it will consider any form of development on flood zone 1 without the need for a flood risk assessment.
65. In the Council’s Committee report it confirmed the developer did not need to produce a flood risk assessment because of the site and scale of the development. The Council reached this decision in line with its policy and I do not find fault.
66. The Council has referenced residents’ concerns about the potential increased risk of localised flooding within the Committee report. The Council decided to include a planning condition requiring the developer to produce a detailed surface water drainage scheme to it before starting development. This condition directly addresses the residents’ concerns about flood risk. This condition also ensures the Council is adhering to Section SD6 of the Unitary Development Plan by showing the developer had a plan to ensure water run-off does not increase because of the development.
67. The Council has considered its policies and the residents’ comments when deciding to approve the planning application and insert a condition about flood risk. I do not find fault with the Council.

Complaint handling

68. Ms X raised her complaint with the Council on 30 March 2021. The Council should have provided its Stage 1 complaint response, or an update, to Ms X by 27 April 2021.
69. The Council failed to provide its Stage 1 complaint response to Ms X until 8 June 2021. By this time, Ms X needed to chase the Council on 26 May 2021 for a response. This meant the Council provided the Stage 1 complaint response 30 working days outside its complaint timescales without providing an update. This is fault.
70. Ms X asked the Council to consider her complaint at Stage 2 of its complaint process on 5 July 2021. The Council provided its response on 2 August 2021. The Council provided the Stage 2 complaint response within the 20-working day timescale. The Council acted in line with its policy and this is not fault.
71. While the Council responded to Ms X’s complaint outside timescales, at Stage 1, I do not consider this caused Ms X a significant personal injustice. This is because the outcome of the Council’s complaint and the Ombudsman’s investigation found no fault with the substantive matter of Ms X’s complaint. This means the outcome of the complaint has not changed Ms X’s situation from before she made the complaint. The Council’s delay did not cause Ms X a longer time period to wait for a changed outcome. The delay of 30 working days outside timescales is also not a delay that is so great to cause significant distress or inconvenience.

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Final decision

72. I have completed my investigation as the fault by the Council has not led to a significant injustice to Ms X.

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Parts of the complaint that I did not investigate

73. I did not investigate Ms X’s complaint about the Council’s enforcement activity about the planning conditions it applied. This is because the Council has not yet had opportunity to address these concerns.
74. Ms X complained to the Council on 30 March 2021, before the Council approved the planning application. The Council provided its final response to Ms X on 2 August 2021, less than two months after it approved the planning application on 8 June 2021. Ms X did not complain to the Council about the developer failing to adhere to planning conditions.
75. Since Ms X did not complain to the Council about the developer failing to adhere to planning conditions, the Council has not had opportunity to address this part of the complaint. The Ombudsman must give the Council opportunity to address a complaint before our involvement.
76. As part of my investigation, I made enquiries of the Council about it verifying satisfaction of some planning conditions it applied. The Council advised it was unaware the developer had started construction and had now begun enquiries. The Council can take any relevant action it sees fit.
77. Ms X retains the right to request an enforcement investigation from the Council about adherence with the planning conditions and bring the enforcement matter back to the Ombudsman for our attention.

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Investigator's decision on behalf of the Ombudsman